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Judges defend gay couples' family life

4 October 2010

Three judges at the European Court of Human Rights have called for an “unequivocal confirmation” that the family life, as well as the private life, of gay couples should be protected under the convention.

The judges were ruling on whether a British mother, who left her husband and two young children and moved in with a lesbian partner, had been discriminated against over child maintenance payments.

The court heard that the mother, known as JM, was told in 2001 that her maintenance payments would have been reduced from £47 per week to only £14 had she entered into a new heterosexual relationship.

The ECtHR upheld her claim that she had been discriminated against under article 14 of the ECHR in conjunction with article 1 of protocol 1.

However, three of the seven judges, including president of the chamber Lech Garlicki, argued in a separate concurring opinion that the court had not expressed itself in “sufficiently clear terms” and should have gone further.

“This is not a case of an occasional cohabitation offering no resemblance to patterns of family life,” they said. “The domestic courts described the relationship in question as a ‘close, loving and monogamous relationship characterised by long-term sexual intimacy’.”

The three judges said the position traditionally taken by the court was that same-sex relations were protected only by the ‘private life’ aspect of article 8, but the court had recently revised its position in a judgment on an Austrian case, yet to be finalised.

They said the case of JM v the UK (application no. 37060/06) “offered a good opportunity to contribute to the emerging change in our case law” but the majority chose to avoid taking a clear position.

“Judicial self-restraint is often a virtue, but not in cases in which courts should admit their own mistakes,” the judges said.

“In any case, we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.”

JM’s claim was upheld by the Appeals Tribunal, the Child Support Commissioner and the Court of Appeal before being rejected by the House of Lords in 2006.

Giving judgment in JM v UK (application no. 37060/06), the ECtHR ruled that although no issue of taxation arose, the child maintenance payments should be regarded as “contributions” for the purposes of article 1 of protocol 1.

Having ruled that the case fell within article 1 and that article 14 applied, the court said it did not find it necessary to rule on whether it also fell within article 8.

“The court considers that the applicant can, for the purposes of article 14, compare her situation to that of an absent parent who has formed a new relationship with a person of the opposite sex,” the ECtHR said.

“The only point of difference between her and such persons is her sexual orientation; in all other relevant respects they are similar. Her maintenance obligation towards her children was assessed differently on account of the nature of her new relationship.”

The ECtHR said, bearing in mind the purpose of the regulations, which was to avoid “placing an excessive financial burden on the absent parent in their new circumstances”, it “perceived no reason” for treating JM differently. It concluded that there had been a violation of article 14 in conjunction with article 1 of protocol 1.

James Welch, legal director of Liberty, acted for JM. He said the ruling “reinforces the position that treating people differently on the basis of their sexuality is no longer acceptable”.

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